Discrimination of a non-citizen regarding access to education and judicial remedy for the denial of such access

Facts

The author, an Afghan national residing in Germany with a residence permit, applied unsuccessfully for admission to medical studies despite meeting the formal eligibility criteria. Admission is first conducted through the “within capacity” process, in which non-German and non-EU nationals may apply only within a restricted “foreigners quota.” Those not admitted at this stage may then seek placement through the “extra capacity” process, which concerns spots not initially listed as available. The administrative court rejected the author’s challenge to his denial, holding that non-nationals are not entitled to consideration under the “extra capacity” procedure.

The author claims that, by excluding him from admission based on nationality in the second step, the State party violated his rights under article 26, read in conjunction with articles 2 (1) and 2 (3) of the Covenant. The State party contends that the author’s claim is inadmissible due to his failure to exhaust domestic remedies, as he did not complain before the Federal Constitutional Court.

Admissibility

The Committee found the claim under article  26, read alone and in conjunction with articles 2 (2) and 2 (3) of the Covenant, to be inadmissible. The Committee reiterated that domestic remedies must be exhausted unless they have no prospect of success, such as when dismissal is inevitable under domestic law or established jurisprudence, but mere doubts about their effectiveness do not exempt this requirement. The Committee stated that by failing to file a complaint with the Federal Constitutional Court and furthermore not sufficiently explaining how the 1988 Constitutional Court decision—which he referred to in his communication—was relevant to his case, the author did not fulfil his obligation to exhaust domestic remedies. Additionally, the author did not provide any argument demonstrating that he had no access to the complaint procedure of the Constitutional Court, nor that recourse to this procedure would have been ineffective.